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Donal Toner v. Kean Construction (Scotland) Limited & CRGP Architects and Surveyors and Partners Thereof [2009] CSOH 105


Procedure Roll:- In this action the pursuer, an architect, sought damages from the first and second defenders, developers and architects respectively, for breach of copyright. The pursuer was instructed by the first defenders predecessor in title as an architect in relation to the development of various sites. The pursuer prepared certain drawings in relation to the development. The pursuer's employment in relation to the developments was subsequently terminated by the first defenders. The pursuer maintained that he had copyright in the drawings. The first defenders then employed the second defenders as architects in relation to the various developments. The second defenders then lodged drawings in respect of a planning application relative to the development. The first defenders constructed the development in conformity with the planning permission. The pursuer alleged breach of copyright against the second defenders in that they had copied substantial parts of the drawings which were then used in support of the first named defenders planning application. The alleged breach of copyright in relation to the first named defenders was that they had constructed the buildings within the development in conformity with the copied plans. At debate at the instance of the first defenders their pleas in law challenged the competency of the pursuer's action and the relevancy and specification of the pursuer's pleadings. The second defenders were unrepresented at the procedure roll. It was submitted on behalf of the pursuer inter alia that it was incompetent to sue more than one defender in the same action where there were separate conclusions against each based on separate and independent grounds of debt. It was further submitted that the case should be dismissed for want of relevancy and specification in that that there were insufficient averments which if proved would lead to damages. Here the court considered whether the cases pled by the pursuer against both defenders were so inextricably linked, both factually and legally, that it was competent and in the interests of justice that the cases be brought against the two defenders in the same action.